HomeMy WebLinkAbout2019-cv-901 - Surat V. City Of Fort Collins, Et Al. - 206 - Pl's Motion In Limine1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:19-cv-00901-WJM-NRN
MICHAELLA LYNN SURAT,
Plaintiff,
v.
CITY OF FORT COLLINS,
Defendant.
______________________________________________________________________________
PLAINTIFF’S MOTION IN LIMINE
______________________________________________________________________________
Plaintiff, by and through her attorneys, David A. Lane and Madison Lips of KILLMER
LANE LLP, hereby submits this Motion in Limine to request the exclusion of irrelevant,
confusing, and prejudicial evidence under Federal Rules of Evidence 401, 402, and 403.
CERTIFICATE OF COMPLIANCE WITH D.C.COLOL.CIV.R. 7.1(A)
Pursuant to D.C.ColoL.Civ.R. 7.1(A) and this Court’s practice standards, undersigned
Counsel for Plaintiff conferred with Counsel for Defendant via email on September 20, 2023.
Counsel for Defendant objected to the relief requested in this Motion via email on October 2,
2023.
INTRODUCTION
This case has been narrowed down to a simple question: whether the City of Fort Collins
failed to train its police officers on the appropriate use of force in response to resistance to arrest.
See [ECF No. 154 at 10]; see also [ECF No. 185 at 30]. At trial, Plaintiff will argue that Officer
Klamser used an unconstitutional takedown maneuver in violation of Ms. Surat’s Fourth
Amendment rights, and that this maneuver was in conformance with the City’s policy and
Case No. 1:19-cv-00901-WJM-NRN Document 206 filed 10/20/23 USDC Colorado pg 1 of 7
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training governing such situations. Considering the narrow scope of the issues at trial, Plaintiff
seeks an Order that:
Prevents Defendant from introducing any testimony or evidence about the defense of self
that Ms. Surat raised in her criminal case;
Prevents Defendant from introducing any evidence of Ms. Surat’s performance while on
probation;
Prevents Defendant from introducing any evidence related to Officer Klamser's previous
awards or promotions at the Fort Collins police department or any other police
department.
ARGUMENT
Under the Federal Rules of Evidence, a court may exclude evidence if it does not have
“any tendency to make a fact more or less probable than it would be without the evidence and the
fact is of consequence in determining the action.” Fed. R. Evid. 401. Irrelevant evidence is not
admissible. Fed. R. Evid. 402. Even where there is some amount of probative value, the Federal
Rules of Evidence also permit a court to exclude evidence “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. As is described below, each of the above points is either irrelevant under
Rules 401 and 402 or fails the balancing test under Rule 403. Each of the above points has been
raised by Defendant during this litigation and presents a significant risk of departing from the
narrow issues of this case at trial such that preemptive exclusion by this Court is warranted.
I. DEFENDANTS SHOULD BE PRECLUDED FROM PRESENTING
EVIDENCE OF THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE
RAISED AT PLAINTIFF’S CRIMINAL TRIAL.
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Evidence that Ms. Surat affirmatively raised self-defense at her criminal trial is
irrelevant to the narrow question of this case and would confuse and mislead the jury.
As far as the jury is concerned, for this trial, Ms. Surat was tried and convicted for
resisting arrest and obstructing the police. That fact will be made known to the jury and the
details of a failed affirmative defense has no bearing on the issue of whether the official policy of
the City of Fort Collins led to this unconstitutional use of force.
This Court has previously granted Defendant’s Motion to Dismiss with regard to liability
associated with Officer Klamser’s pre-takedown actions when Ms. Surat was pulling away from
him, determining such liability to be barred by Heck v. Humphrey, 512 U.S. 477 (1994) [ECF
No. 84 at 10]. In doing so, this Court found that “the defendant who loses her self-defense
argument cannot, as a § 1983 plaintiff, argue that the preexisting force—the force to which she
says she was reacting in self-defense—was excessive. That would necessarily imply the
invalidity of the conviction.” [ECF No. 84 at 12]. This Court then distinguished between
resistance to different degrees of force throughout the interaction between Officer Klamser and
Ms. Surat to find that “[t]he fact that the suspect was resisting justifies the conviction, and the
failure of the self-defense argument conclusively establishes that the force which provoked the
resistance was lawful. But the force used to end that resistance is a separate question.” Id. at 12-
13 (emphasis in original).
Although that ruling at the Rule 12(b)(6) Motion to Dismiss stage related specifically to
the excessive force claim against Officer Klamser, which the Tenth Circuit subsequently
dismissed on the grounds that the constitutional violation was not clearly established law, the
remaining Monell claim has also been limited solely to the question of whether the takedown
was a constitutional violation that conformed with City policy. [ECF No. 154 at 10-13].
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Ms. Surat’s affirmative defense of self-defense at her criminal trial related solely to Heck-
barred liability for “the force which provoked the resistance” rather than the force at issue here,
“the force used to end that resistance.” [ECF No. 84 at 12] (emphasis in original). Therefore, a
prior jury’s determination that Ms. Surat’s resistance to arrest was unjustified by self-defense at
some point during the interaction prior to Officer Klamser’s takedown is irrelevant to the specific
question of whether the takedown was excessive under the Fourth Amendment – and ultimately,
whether the City of Fort Collins failed to train its officers that such conduct is unconstitutional.
As an important distinction, Ms. Surat is not asking this Court to exclude evidence of her
convictions for resisting arrest and obstructing a peace officer. As the Tenth Circuit instructed the
district court on remand in Martinez v. City of Albuquerque, 184 F.3d 1123, 1127 (10th Cir.
1999), in a § 1983 trial such as this in which the plaintiff was convicted of resisting arrest for
resistance prior to the act of excessive force in question, the jury should be instructed that the
“state arrest was lawful per se.” Rather, Ms. Surat is specifically asking this Court to avoid
confusing and misleading the jury by getting into the weeds about what a jury specifically
decided regarding the resistance to the initial use of force.
A jury would likely have an exceptionally difficult time distinguishing between force
provoking resistance and force used to end resistance when considering a prior jury’s rejection of
Ms. Surat’s self-defense claim in her criminal trial. Introducing evidence that a jury has
previously rejected a self-defense argument as a criminal defense when deciding whether any
part of the interaction between Officer Klamser and Ms. Surat constituted unlawful resistance to
arrest poses a substantial risk of confusing and misleading this jury. Therefore, evidence
regarding the prior affirmative self-defense raised at Ms. Surat’s criminal trial should be
excluded under Rules 402 and 403.
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II. DEFENDANTS SHOULD BE PRECLUDED FROM PRESENTING
EVIDENCE OF PLAINTIFF’S PERFORMANCE WHILE ON PROBATION.
Any evidence relating to Plaintiff’s probation record is irrelevant and would be unfairly
prejudicial.
In Ms. Surat’s deposition, counsel for Defendant asked Ms. Surat, “Did you have any
issues during your probation?” Exhibit 1. Ms. Surat explained that she was ordered to complete
a three-month extension of probation after she obtained a medical marijuana license. Id.
Probation records produced by Plaintiff during discovery show that Ms. Surat tested positive for
marijuana multiple times during her period of probation before she obtained her medical
marijuana license, and as a result, she was ordered to complete three extra months of probation.
Exhibit 2.
Ms. Surat’s performance while on probation has no “tendency to make a “fact [] of
consequence in determining the action” any “more or less probable.” Fed. R. Evid. 401. Ms.
Surat’s initially unauthorized marijuana use while on probation between October 2018 and
October 2019 (long after the date of the use of force) is not a fact of consequence in determining
whether Officer Klamser used an unconstitutional takedown maneuver on April 6, 2017 in
violation of Ms. Surat’s Fourth Amendment rights, and whether this maneuver was in
conformance with Defendant Fort Collins’ policy and training governing such situations. The
only conceivable purpose for introducing this evidence would be to paint Ms. Surat in a negative
light, which would be unfairly prejudicial with no probative value. Fed. R. Evid. 403. Therefore,
evidence or testimony regarding Ms. Surat’s unauthorized use of marijuana while on probation
should be excluded under Rules 402 and 403.
III. DEFENDANTS SHOULD BE PRECLUDED FROM INTRODUCING ANY
EVIDENCE RELATED TO OFFICER KLAMSER’S PREVIOUS AWARDS OR
PROMOTIONS AT THE FORT COLLINS POLICE DEPARTMENT OR ANY
OTHER POLICE DEPARTMENT.
Case No. 1:19-cv-00901-WJM-NRN Document 206 filed 10/20/23 USDC Colorado pg 5 of 7
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Evidence of any of Officer Klamser’s prior awards or promotions as a police officer
prior to April 6, 2017 is irrelevant and unfairly prejudicial.
Officer Klamser has had a long career in law enforcement, starting at the Clovis Police
Department in Clovis, California from 2001 to 2012, after which he moved to Fort Collins and
joined the city’s police force. Documents produced under a protective order in response to
written discovery requests reveal that Officer Klamser has been honored with various
commendations, awards, and promotions by his police department employers prior to April 6,
2017. Since those potential awards and promotions have nothing to do with whether or not Fort
Collins had an unconstitutional policy of training officers to use excessive force in violation of
the Fourth Amendment at the time of this incident, they are irrelevant and should be excluded
under Rule 402. They would furthermore be unfairly prejudicial by bolstering Officer Klamser’s
reputation as an officer without adding any probative value under Rule 403. Officer Klamser is
not a defendant in this case, and therefore presenting the equivalent of character evidence
regarding him is not relevant to any issue in this case.
CONCLUSION
For the foregoing reasons, Plaintiff requests this Court enter an order excluding any
evidence regarding Ms. Surat’s affirmative defense of self-defense raised at the criminal trial, her
use of marijuana while on probation, and Officer Klamser’s prior awards or promotions as a
police officer as irrelevant per Fed. R. Evid. 401 and 402 or as inadmissible per Fed. R. Evid.
403.
DATED this 20th day of October 2023.
KILLMER LANE, LLP
s/ Madison S. Lips
___________________________
Case No. 1:19-cv-00901-WJM-NRN Document 206 filed 10/20/23 USDC Colorado pg 6 of 7
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David A. Lane
Madison Lips
KILLMER LANE, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
dlane@killmerlane.com
mlips@killmerlane.com
Counsel for Plaintiff
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing will be filed via CM/ECF which will serve
the following via e-mail:
Mark Ratner
Brenden Desmond
Hall & Evans, LLC
1001 Seventeenth Street, Ste 300
Denver, CO 80202
303-628-3492
ratnerm@hallevans.com
desmondb@hallevans.com
s/ Jamie Akard
Jamie Akard
I certify that pursuant to Section II.D.2.b. of Hon. William J. Martinez’s Practice Standards a
true and correct copy of the above and foregoing was contemporaneously served via email on
Defendant Fort Collins.
Case No. 1:19-cv-00901-WJM-NRN Document 206 filed 10/20/23 USDC Colorado pg 7 of 7
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Case No. 1:19-cv-00901-WJM-NRN Document 206-1 filed 10/20/23 USDC Colorado pg 1
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GRANTED BY COURT
10/10/2019
Kraig Ecton
Judge
DATE FILED: October 10, 2019 4:30 PM
CASE NUMBER: 2017M965
SURAT 001672
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SURAT 001673
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